If further evidence of a schism between the woke base of the Democratic Party and its leadership class, the move to impeach Justice Brett Kavanaugh should provide it. A fresh allegation of sexual impropriety over the weekend stoked the fires of impeachment among activists but realists quickly dismiss the movement.
The new allegation is from a third party who said he saw Kavanaugh’s friends push his penis into a female Yale student’s hands during a drunken party. Max Stier, the man who claimed to witness the incident, has not come forward publicly and the New York Times story on the incident was corrected to point out that the woman at the center of the allegation does not remember the incident and declined to be interviewed. There also seem to be no other corroborating witnesses or evidence.
In summary, the allegation is like the other allegations against Kavanaugh in that none of them can be supported by objective evidence. If this information had been brought forward in the confirmation hearings, it would not have changed anything and it is not sufficient to justify impeachment. None of this matters to the chattering class, but the people who would have to carry out the impeachment know better.
“Get real,” said Senate Minority Whip Dick Durbin (D-Ill.) on Monday.
“We’ve got to get beyond this ‘impeachment is the answer to every problem.’ It’s not realistic,” Durbin told Politico. “If that’s how we are identified in Congress, as the impeachment Congress, we run the risk that people will feel we’re ignoring the issues that mean a lot to them as families.”
Squad member Rep. Ayanna Pressley (D-Mass.) has said that she will introduce an impeachment resolution that would allow House Judiciary Committee to investigate whether Kavanaugh should be impeached, arguing, “Kavanaugh’s confirmation process set a dangerous precedent. We must demand justice for survivors and hold Kavanaugh accountable for his actions.”
Let me help her answer that question. He shouldn’t.
Per the Constitution, “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” If we look back to the original intent of the phrase “high crimes and misdemeanors,” it is much more broad than the criminal definition often assumed today. As the Constitutional Rights Foundation points out:
The convention adopted “high crimes and misdemeanors” with little discussion. Most of the framers knew the phrase well. Since 1386, the English parliament had used “high crimes and misdemeanors” as one of the grounds to impeach officials of the crown. Officials accused of “high crimes and misdemeanors” were accused of offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping “suppress petitions to the King to call a Parliament,” granting warrants without cause, and bribery. Some of these charges were crimes. Others were not. The one common denominator in all these accusations was that the official had somehow abused the power of his office and was unfit to serve.
There is no evidence that any of these apply to Brett Kavanaugh, especially since he took his seat on the Supreme Court last year. This is key because the House Judiciary Committee determined in 1873 that impeachment “should only be applied to high crimes and misdemeanors committed while in office and which alone affect the officer in discharge of his duties.”
At this point, there is far more cause to impeach Donald Trump than Brett Kavanaugh. The Mueller report’s revelations of Trump’s attempts to interfere with an ongoing investigation and the president’s use of national emergencies to circumvent the will of the people expressed through Congress would arguably fall under the abuse of office category of “high crimes and misdemeanors.”
The ultimate problem with impeaching both Kavanaugh and Trump is the Republican Congress. As Sen. Patrick Leahy (D-Vt.) pointed out, “Mitch McConnell would block any impeachment. So that’s a moot point.”
Impeachment of either man would be pointless because Democrats are not even close to the required two-thirds of members present in the Senate. An impeachment vote in the House would only serve to fortify the Republican base for the upcoming election.
An article in Vox that judges can be removed without impeachment faces similar problems. The argument, based on a paper that predates the Kavanaugh controversy by law professors Saikrishna Prakash and Steven D. Smith, is that judges who fail to exhibit “good behavior” can be removed by the “judicial process.”
Again, the problem is that Kavanaugh has not committed “misbehavior” while in office. Further, the Department of Justice and Supreme Court are controlled by Republicans and constitutionalists respectively. Neither is likely to allow a court proceeding that would remove Kavanaugh.
There is a good argument that the bar for impeachment is too high, especially given our stalemated Congress and current tribal partisan nature, but the procedure is laid out by the Constitution and will not be changed any time soon, again thanks to our stalemated Congress. The rank-and-file members of Congress and presidential candidates who are pushing impeachment of the two men are either strategically challenged or are doing so to gain publicity for themselves at the expense of their party.
Originally published on The Resurgent